Exclusive: A Liberal Organization's Post–Hobby Lobby Battle Plan

A memo from the Center for American Progress details how Democrats should fight back

July 1, 2014

Now that the Hobby Lobby ruling is in, Democrats must determine how best to respond to it. Both Harry Reid and the White House have suggested that Congress should respond with a legislative remedy, which would both settle the issue and force Republicans to address the specific issue of contraception as opposed to the generic issue of religious liberty.

But that still raises the question of what, in substantive terms, Democrats should try to accomplish.

Conceptually, they have two choices. They can limit themselves to fixing the specific inequities the ruling created (for female employees of Hobby Lobby and similar companies). Or they can move more aggressively, to make sure the ruling isn't used as pretext to weaken other benefit guarantees or to discriminate against sexual minorities and so on. To flatten the slippery slope.

The Center for American Progress, an influential liberal organization, is pushing for the latter approach. In a strategy memo sent my way, CAP experts argue that the proper course of action would be to amend the federal Religious Freedom Restoration Act and comparable state-level laws to explicitly prohibit business owners from using them "as a tool to discriminate or deny needed medical care."

They even suggest the following legislative text: “This section [referring to the existing statute] does not authorize exemptions that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs.”

The strategic catch to this approach is that some Democrats won't want to do anything that can be characterized as "weakening" something called the Religious Freedom Restoration Act.

But the idea here isn't to deny people the right to impute their faiths into their businesses. It's to prevent owners of closely held companies from doing that for the purpose of burdening others, as Hobby Lobby did; to moot the Court's interpretation of the law as it currently exists. By drafting it as a broad anti-discrimination measure, it would put conservative Republicans on the wrong side not just of women and the contraception issue specifically, but of religious and sexual minorities as well. In that way, it would resemble the recent fight in Arizona over S.B. 1062—legislation that would've provided religious business owners who discriminate against workers or customers a strong defense in court. The backlash to that bill was so overwhelming that the state's conservative governor, Jan Brewer, was ultimately forced to veto it, to great consternation on the right.

Although the Supreme Court's conservative majority limited Monday's ruling to the question of the contraception guarantee alone, its logic will appeal to religious business owners, such as those in Arizona, who want exemptions from other generally applicable laws benefitting third parties. Not all of their efforts would be successful. For example, Justice Samuel Alito himself noted in the Court's opinion that the government's compelling interest in preventing the spread of infectious diseases would weigh against a religious business owner who wanted to deny employees immunization coverage. But some of them would win. CAP's legislative remedy would close off the avenue altogether.

That would be a better outcome than a narrow fix for burdened Hobby Lobby employees and others. It would create clarity where the Court created confusion. And though the politics aren't as straightforward as a narrowly-tailored fix for female employees of religious business owners, it would force Republicans in Washington and in states across the country to take a position on the question of whether they think "religious liberty" entails the right to discriminate against and impose on others broadly, not just with respect to their legal guarantee of cost-free contraception.